Opinion
NO. 2012 CA 0422
12-21-2012
DWIGHT ALLEN WOOSLEY AND BARBRA GRIFFITH WOOSLEY v. PARISH OF EAST BATON ROUGE; THE CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE DEPARTMENT OF PUBLIC WORKS AND EVANS-GRAVES ENGINEERS, INC.
J. ARTHUR SMITH, III BATON ROUGE, LA AND JANE H. BARNEY BATON ROUGE, LA ATTORNEYS FOR PLAINTIFFS-APPELLANTS DWIGHT ALLEN WOOSLEY AND BARBRA GRIFFITH WOOSLEY ARLENE C. EDWARDS BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLEE CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE MICHAEL J. MONISTERE METAIRIE, LA ATTORNEY FOR DEFENDANT-APPELLEE EVANS-GRAVES ENGINEERS, INC.
NOT DESIGNATED FOR PUBLICATION
Appealed from the
19th Judicial District Court
in and for the Parish of East Baton Rouge, Louisiana
Trial Court No. 578,106
Honorable Kay Bates, Judge
J. ARTHUR SMITH, III
BATON ROUGE, LA
AND
JANE H. BARNEY
BATON ROUGE, LA
ATTORNEYS FOR
PLAINTIFFS-APPELLANTS
DWIGHT ALLEN WOOSLEY AND
BARBRA GRIFFITH WOOSLEY
ARLENE C. EDWARDS
BATON ROUGE, LA
ATTORNEY FOR
DEFENDANT-APPELLEE
CITY OF BATON ROUGE/PARISH
OF EAST BATON ROUGE
MICHAEL J. MONISTERE
METAIRIE, LA
ATTORNEY FOR
DEFENDANT-APPELLEE
EVANS-GRAVES ENGINEERS,
INC.
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
PETTIGREW , J .
Plaintiffs, Dwight Allen Woosley and Barbra Griffith Woosley, appeal a grant of summary judgment that dismissed all of their claims against defendants, the Parish of East Baton Rouge, the City of Baton Rouge/Parish of East Baton Rouge Department of Public Works ("City/Parish") and Evans-Graves Engineers, Inc. ("Evans-Graves"), with prejudice. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
According to the record, the Woosleys purchased their home, which is situated in the Biltmore Subdivision on 14970 Brent Avenue, Central City, Louisiana, on December 10, 1976, and have continuously resided there since that time. Prior to the Woosleys' purchase of the home, a sewer line was installed east of the City/Parish's servitude for public utilities along the west sideline of the property in question. The Woosleys allege that it was not until they constructed a garage on their property in 1979 that they became aware of this buried sewer line on their property. Following numerous unsuccessful attempts to get the sewer line removed from their property, the Woosleys filed a tort action on May 6, 2009, against the City/Parish and Evans-Graves. In connection therewith, the Woosleys claimed that both the City/Parish and Evans-Graves were liable for trespass and all damages sustained by the Woosleys as a result of said trespass.
In response to said petition for damages, the City/Parish filed a general denial. Subsequently the City/Parish filed a motion for summary judgment as to the Woosleys' original petition, urging that the Woosleys' claims were prescribed. The motion filed by the City/Parish was supported by deposition excerpts from the Woosleys. Evans-Graves filed an exception raising the objection of peremption; however, there is no indication in the record that this exception was ever heard by the trial court. Rather, Evans-Graves subsequently sought to dismiss the Woosleys' claims through the filing of a motion for summary judgment. Evans-Graves argued that it was entitled to summary judgment because the Woosleys' claims were perempted and because the Woosleys had no expert witness to testify that Evans-Graves deviated from the standard of care for an engineer. Evans-Graves' claim of peremption was based on La. R.S. 9:2772 and 9:5607. In support of its motion for summary judgment, Evans-Graves submitted the affidavit of John A. Graves, President of Evans-Graves and a licensed civil engineer since 1970.
At all times pertinent hereto, La. R.S. 9:2772(A) provided, in part, as follows:
A. No action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable or movable property which may include, without limitation, consultation, planning, designs, drawings, specification, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought against any person performing or furnishing land surveying services, as such term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables! or improvement to immovable property, including but not limited to a residential building contractor as defined in R,S. 37:2150.1(9):And La. R.S. 9:5607(A) provided, in part, as follows:
(1)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner.
(b) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than five years after the improvement has been thus occupied by the owner.
A. No action for damages against any professional engineer, surveyor, engineer intern, surveyor intern, or licensee as defined in R.S. 37:682, or any professional architect, landscape architect, architect intern, or agent as defined in R.S 37-141 or professional interior designer, or licensee as defined in R.S. 37:3171, or other similar licensee licensed under the laws of this state, or real estate developer relative to development plans which have been certified by a professional engineer or professional architect, whether based upon tort, or breach of contract, or otherwise arising out of an engagement to provide any manner of movable or immovable planning, construction design, or building, which may include but is not limited to consultation, planning' designs, drawings, specifications, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought unless filed in a court of competent jurisdiction and proper venue at the latest within five years from:
(1) The date of registry in the mortgage office of acceptance of the work by owner; or
(2) The date the owner has occupied or taken possession of the improvement in whole or in part, if no such acceptance is recorded[.]
The Woosleys subsequently filed a first amending petition asserting a petitory action in connection with what they alleged was basically a predial servitude being used and operated by the City/Parish and Evans-Graves. In the first amending petition, the Woosleys sought a judgment 1) recognizing them as the owners of the predial servitude; 2) recognizing their right to peaceful possession of the predial servitude; and 3) requiring the defendants to remove the sewer line and impacted soil from their property and repair all damage caused by their use and occupation of the predial servitude.
According to the record, the City/Parish filed a general denial as to the first amending petition by the Woosleys. There are no other pleadings by the City/Parish in the record before us concerning either the original petition or the first amending petition filed by the Woosleys. In response to the first amending petition, Evans-Graves filed an exception raising the objection of peremption, adopting and reurging the arguments it had previously made with respect to the original petition. However, Evans-Graves failed to set the exception for hearing. Rather, Evans-Graves filed a supplemental memorandum in support of its original motion for summary judgment, reurging all arguments in support of its original motion for summary judgment. Thereafter, Evans-Graves filed a second motion for summary judgment seeking dismissal of the Woosleys' first amending petition, along with a motion for sanctions, arguing that a reasonable legal inquiry had not been conducted by the Woosleys prior to the filing of any pleadings. Evans-Graves asserted that the Woosleys and their attorneys filed the original and amending petitions unsupported by evidence and with full knowledge that the allegation that Evans-Graves installed the sewer line was false.
After filing their first amending petition, the Woosleys filed an opposition to the motions for summary judgment filed by the City/Parish and Evans-Graves. Initially, the Woosleys noted that neither the City/Parish nor Evans-Graves had supplemented the pending summary judgment motions to discuss the petitory action set forth in the first amending petition. Noting that a petitory action was an imprescriptable claim and that this issue had not been addressed by the motions, the Woosleys maintained that summary judgment should be denied on that ground alone. In the alternative, the Woosleys argued that the trespass was continuing and that any time limitations for them to file their claims would not begin to run until the sewer line was removed. The Woosleys also filed a motion to strike the affidavit of John A, Graves, asserting that it was facially invalid, incompetent summary judgment evidence, and inadmissible for the purpose for which it has been offered.
The Woosleys' opposition to the motions for summary judgment was filed before Evans-Graves filed its second motion for summary judgment seeking dismissal of the Woosleys' first amending petition.
The Woosleys subsequently filed a motion for summary judgment on their petitory action, seeking judgment 1) recognizing them as the owners of the predial servitude; 2) recognizing their right to peaceful possession of the predial servitude; and 3) requiring the defendants to remove the sewer line and impacted son' from their property and repair all damage caused by their use and occupation of the predial servitude. In support of their motion, the Woosleys submitted various documents pertaining to their property, including the subdivision restrictions and the cash sale dated December 10,1976, and an affidavit by Mr. Woosley.
Following a hearing on December 5, 2011, the trial court denied the Woosleys' motion for summary judgment and granted the motions for summary judgment filed by the City/Parish and Evans-Graves. The trial court further ruled that the motion to strike was moot and denied the motion for sanctions, finding that the Woosleys' claims did not meet the level of frivolous litigation. A judgment to this effect was signed by the trial court on December 21, 2011, dismissing ail claims by the Woosleys against the City/Parish and Evans-Graves, with prejudice.
It is from this judgment that the Woosleys have appealed, assigning the following specifications of error:
1. The trial court committed multiple errors with respect to the Woosleys' petitory action and erred in denying the Woosleys' motion for summary judgment as to their petitory action.
2. The trial court erred in granting summary judgments in favor of defendants.
The denial of the Woosleys' motion for summary judgment would generally be a non-appealable interlocutory judgment. La. Code Civ. P. arts. 968 and 2083. However, it may be reviewed on an appeal of a final judgment in the suit. See People of the Living God v. Chantilly Corp., 251 La. 943, 207 So.2d 752, 753 (1968). In this case, since the trial court's judgment disposed of all the relief prayed for by the Woosleys, it is a final judgment. See La. Code Civ. P. art. 1841. Therefore, it is appropriate for this court to review the trial court's ruling that denied the Woosleys' motion for summary judgment in reviewing the trial court's judgment that granted the motions for summary judgment filed by the City/Parish and Evans-Graves. Parish Nat Bank v. Wilks, 2004-1439, p. 4 n.6 (La. App. 1 Cir. 8/3/05), 923 So.2d 8, 11 n.6.
LAW AND ANALYSIS
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of materia! fact, Gonzales v. Kissner, 2008-2154, p. 4 (La. App. 1 Cir. 9/11/09), 24 So.3d 214, 217, Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La, Code Civ. P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. P. art. 966(A)(2); Aucoin v. Rochel, 2008-1180, p. 5 (La. App. 1 Cir. 12/23/08), 5 So.3d 197, 200, writ denied, 2009-0122 (La. 3/27/09), 5 So.3d 143.
Summary judgment is subject to de novo review on appeai, using the same standards applicable to the trial court's determination of the issues, Berard v. L-3 Communications Vertex Aerospace, LLC, 2009-1202, p. 5 (La. App. 1 Cir. 2/12/10), 35 So.3d 334, 339-340, writ denied, 2010-0715 (La. 6/4/10), 38 So.3d 302. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether the mover is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La. App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied. 2003-3439 (La. 2/20/04), 866 So.2d 830.
On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essentia! elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. Code Civ. P. art. 966(C)(2); Janney v. Pearce, 2009-2103, .p. 5 (La. App. 1 Cir. 5/7/10), 40 So.3d 285, 288-289, writ denied, 2010-1356 (La. 9/24/10), 45 So.3d 1078.
After hearing argument from the parties at the hearing on the motions for summary judgment, the trial court offered the following reasons for judgment:
The plaintiffs filed this suit in this matter alleging trespass on their property for installation of the sewer line along the side of their property prior to their purchasing the property. They further allege that it was not known to them until 1979, and it has caused damage to their property and lowered their property value. The City/Parish and Evans-Graves Engineers claims [sic] the plaintiffs' claims have prescribed and/or are barred by peremption.
The plaintiffs have admitted that they became aware of the encroachment on their property in 1979, and first noticed damages in 2004, five years before filing suit. The plaintiffs were required to file suit within the one year liberative prescriptive period. The only exception to this rule is the continuing tort doctrine.
. . . .
The court has carefully examined the pleadings, the memoranda, the exhibits and the law as it pertains to the matter, as well as the exhibits submitted by the parties, and accordingly finds that the action in this matter is hereby prescribed on its face. The plaintiffs knew of the alleged encroachment of the sewer line, as well as the damages, they claim more than one year prior to filing suit. The continuing tort doctrine does not apply here as the continuing damaged property does not extend the liberative prescriptive period.
For the foregoing reasons, the motion for summary judgment filed on behalf of the plaintiffs is hereby denied, and the motions for summary judgment filed on behalf of Evans-Graves and the City/Parish are hereby granted as there is no genuine issue of material fact remaining in this suit because it has prescribed, and the defendants are entitled to a judgment as a matter of law.
Following our review of the record before us, we agree with the trial court that judgment in favor of the City/Parish and Evans-Graves on the tort action was warranted, but for reasons other than those given by the trial court. Under the unique facts and circumstances of this case, the Woosleys have failed to state a cause of action against either the City/Parish or Evans-Graves for trespass in their original tort action, and, thus, their claims should have been dismissed accordingly.
Louisiana Code of Civil Procedure article 927(B) provides that a plaintiffs failure to disclose a cause of action to institute the suit may be noticed by either the trial or appellate court on its own motion. See Capital City Towing & Recovery, Inc. v. City of Baton Rouge, 97-0098, p. 5 (La. App. 1 Cir. 2/20/98), 709 So.2d 248, 251. The function of the peremptory exception raising the objection of no cause of action is to question whether law extends a remedy against the defendant under the factual allegations of the petition. Hoag v. State, 2004-0857, p. 9 (La. 12/1/04), 889 So.2d 1019, 1025. Generally, no evidence may be introduced to support or controvert the exception. La. Code Civ. P. art. 931= However, the jurisprudence recognizes an exception to this rule, which allows the court to consider evidence that is admitted without objection to enlarge the pleadings. Stephenson v. Nations Credit Financial Services Corp., 98-1688, p. 14 (La. App. 1 Cir. 9/24/99), 754 So.2d 1011, 1021.
Although the evidence in the record was admitted by the parties in connection with the motions for summary judgment that were before the trial court, this court will consider same as La. Code Civ. P. art. 2164 gives us the freedom to "render any judgment which is just, legal, and proper upon the record on appeal."
The installation of the sewer line was the injury producing event from which the Woosleys' tort-based cause of action for trespass necessarily arose. The record is clear that the sewer line was installed sometime prior to the Woosleys' purchase of the property in 1976. Moreover, Mr. Woosley acknowledged in his deposition that it was his understanding that a third party, Sullivan Construction/was the company that actually installed the sewer system in his neighborhood. Thus, it follows that any cause of action that the Woosleys may have for trespass on their property would properly be against Sullivan Construction, not against the City/Parish or Evans-Graves, as neither of these parties had anything to do with the actual installation of the sewer line in question. Accordingly, we conclude the Woosleys have failed to state a cause of action for trespass for which relief may be granted against the City/Parish and Evans-Graves, and their tort action is hereby dismissed. Our inquiry, however, does not end here.
In its reasons for judgment, the trial court made reference to the Woosleys filing suit "alleging trespass on their property for installation of the sewer line along the side of their property prior to their purchasing the property" and whether their claims were "prescribed and/or barred by peremption." The trial court makes no mention of the Woosleys' first amending petition alleging a petitory action against the City/Parish and Evans-Graves. Instead, the trial court simply denied the motion for summary judgment filed by the Woosleys on this very issue.
Pursuant to La. Code Civ. P. art. 3651, a "petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiffs ownership." The proof of ownership required in a petitory action is set forth in La. Code Civ. P. art. 3653 as follows:
To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; orWhen the titles of the parties are traced to a common author, he is presumed to be the previous owner.
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.
Evans-Graves addressed the Woosleys' petitory action and filed a second motion for summary judgment seeking dismissal of the Woosleys' claims. In support of its motion, Evans-Graves submitted a second affidavit from John A. Graves, in which Mr. Graves attested that Evans Graves finished its work in connection with the project in question in 1974 and that Evans-Graves had never controlled, possessed, used, or occupied the buried sewer line on the Woosleys'. property.
While the City/Parish filed a general denial as to the Woosleys' petitory action, it appears from the record that the City/Parish did little else with respect to this issue prior to the hearing before the trial court. We have thoroughly reviewed the record on appeal and find no opposition by the City/Parish to the Woosleys' summary judgment motion. Moreover, the City/Parish failed to supplement its original motion for summary judgment to address the petitory action and never filed a second motion for summary judgment to counter the arguments set forth by the Woosleys in their motion for summary judgment on the petitory action.
There are references in the briefs by the City/Parish and by the Woosleys to an opposition to the Woosleys' motion for summary judgment filed by the City/Parish, wherein the City/Parish denied any claim of ownership to the property occupied by the sewer line. However, this opposition does not appear in the record before us. In the City/Parish's answer to the Woosleys' original and amending petitions, it denied that the Woosleys owned the property in question, directly contradicting the statement allegedly made by the City/Parish in its opposition to the Woosleys' motion for summary judgment.
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Based on our review of the evidence, we find there are no genuine issues of material fact remaining as to any of the issues relative to the Woosleys' petitory action against Evans-Graves. Accordingly, summary judgment in favor of Evans-Graves was appropriate, and all claims by the Woosleys against Evans-Graves were properly dismissed by the trial court below. However, with respect to the City/Parish, we find there is sufficient evidence in the record to create a genuine issue of material fact concerning the Woosleys' petitory action against the City/Parish. Thus, we reverse that portion of the judgment that denied summary judgment in favor of the Woosleys as it relates to the City/Parish and remand for further proceedings.
CONCLUSION
For the above and foregoing reasons, we affirm that portion of the December 21, 2011 judgment that granted the motions for summary judgment filed by Evans-Graves and dismissed all claims filed by the Woosleys against Evans-Graves, with prejudice. We likewise affirm that portion of the judgment that dismisses the Woosleys' claims in trespass against the City/Parish. We reverse that portion of the judgment that dismisses the petitory action claim asserted by the Woosleys against the City/Parish. We also reverse that portion of the judgment that denied the motion for summary judgment filed by the Woosleys, only as it relates to their petitory action against the City/Parish, and remand for further proceedings. In all other respects, the judgment is affirmed. Appeal costs in the amount of $1,880.32 are assessed equally against the Woosleys and City/Parish.